Dana Milbank: The NSA legal battle is already ugly, and only on one side

Wednesday

Feb 26, 2014 at 7:03 PMFeb 26, 2014 at 7:05 PM

The legal fight against National Security Agency surveillance is shaping up to be a titanic clash, with pugilistic litigants trading charges and countercharges of bad faith and misinformation.

Dana MilbankWashington Post Writers Group

The legal fight against National Security Agency surveillance is shaping up to be a titanic clash, with pugilistic litigants trading charges and countercharges of bad faith and misinformation.

And that’s just among the plaintiffs.

The federal court hasn’t yet acted on the NSA lawsuit filed last week by Sen. Rand Paul, R-Ky., and former Virginia attorney general Ken Cuccinelli, but lawyers who should be on the same side in the case have been squabbling outside the courtroom. First, one of Paul’s lawyers complained that he had been pushed aside and hadn’t been paid in full for his work. No sooner had that controversy been faced when a new one emerged from a plaintiff in a similar suit in the same court.

“They think they can take what others have done and claim credit themselves,” protested the plaintiff, Larry Klayman, who filed suit in June and won a preliminary injunction against the NSA in December.

Klayman, who has been suing public officials for decades, sent Cuccinelli a letter Tuesday asking him to make “corrections to the public record” because of “misinformation” Paul’s team had disseminated about Klayman’s case against the NSA.

Klayman told Cuccinelli that he “created the mistaken impression that your case is the only class action and that it is the only one that seeks to include the entire affected U.S. citizenry. To the contrary, the lawsuit which we filed before yours is much broader and [more] all-encompassing than your own.”

The conservative gadfly was smarting from Cuccinelli’s portrayal of Klayman’s suit in a news conference last week. Cuccinelli said it involves only “individual plaintiffs” and “does not provide relief for every American who’s using a telephone.”

“Everything they basically said was inaccurate, and it was calculated to create the impression that they’re the only case out there and that no one else did anything here,” Klayman told me last week. “I’m offended by it.” He made similar arguments on the conservative WND website.

Cuccinelli responded with an email informing Klayman that “it has never been my habit as a lawyer to communicate with people through newspaper columns, so please don’t assume that method will be fruitful going forward. Email is much more effective and it comes without the presumption that you are not — in fact — talking to me.”

The former gubernatorial candidate said he would take Klayman’s comments “under advisement.” Paul’s senior adviser, Doug Stafford, issued a statement wishing “others who stand with us in this fight well.”

The out-of-court antics surrounding Paul and Cuccinelli are but a sideshow to the main issue of government surveillance -- but it has been quite a sideshow, pitting prominent tea party figures against one another.

Paul and Cuccinelli are darlings of the tea party movement, and they’re joined in their lawsuit by the tea party group FreedomWorks — not to be confused with Freedom Watch, Klayman’s organization. Klayman, a well-known provocateur, held a rally last year to oust President Obama, whom he calls a “Marxist, pro-Islam, anti-American president.” Although often outlandish, he’s also a wily lawyer: Klayman made his name filing lawsuits against Bill Clinton but later antagonized George W. Bush and Dick Cheney in court.

The contretemps began as Paul and Cuccinelli filed their suit last week. Bruce Fein, a constitutional lawyer who had written most of the suit, had been removed from the filing. Fein’s ex-wife and longtime spokeswoman complained that Cuccinelli “stole” Fein’s work — which prompted a heated denial from Cuccinelli. Fein later issued a statement saying that she “was not speaking for me” and that he had “been paid for my work.” But his statement was contradicted by emails sent to and from Fein’s account.

Now Klayman is accusing Paul and Cuccinelli of filing a lawsuit that is “patterned after our own” but claiming it’s something different. “You should be accurate, particularly if you’re a senator and his lawyer,” he said.

Klayman, who has asked the Supreme Court to act on his case, also took issue with Cuccinelli’s announcement that Paul would not seek expedited handling, which probably means the case will stretch through Paul’s expected 2016 presidential run.

“The time is not for politics,” Klayman said. “The time is to get the job done and protect the American people.”

He said he “didn’t want to start a war” with the other plaintiffs, “but I do want these things corrected.”